BILL ANALYSIS Ó AB 321 Page 1 Date of Hearing: April 13, 2011 ASSEMBLY COMMITTEE ON APPROPRIATIONS Felipe Fuentes, Chair AB 321 (Hernandez) - As Amended: March 30, 2011 Policy Committee: Public SafetyVote: 7-0 Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill requires community service and counseling, and authorizes new educational efforts for minors adjudicated for "sexting." Specifically, this bill: 1)Requires a court to order community service and counseling - at the expense of the minor's parents - in addition to any other fine, sentence, or as a condition of probation, for any minor adjudicated for possession or control of matter depicting sexual conduct involving a minor. Specifies the court must consider ability to pay, but that inability to pay does not relieve a minor from the counseling requirement. 2)Authorizes school districts to provide instruction regarding the risks of creating and sharing sexually suggestive or explicit materials through smart phones, social networking sites, and other digital media. FISCAL EFFECT 1)Unknown minor non-state-reimbursable local costs to probation departments for offender assessments, likely less than $20,000. 2)Unknown non-state-reimbursable local costs, likely less than $50,000, to probation departments to cover costs of mandatory counseling for families that cannot afford to pay. 3)Significant annual GF/Prop 98 cost pressures, potentially in AB 321 Page 2 excess of $1 million, as a result of codifying a statewide authorization for schools to provide instruction on the dangers of sexting. For example, instructional costs, for a 30-minute unit on sexting for 10% of the 9-12 grade student population would be about $500,000. Teacher training for 10% of the teachers would be in the range of $2 million. Instructional materials, at a rate of about $3 per student, would be about $300,000. COMMENTS 1)Rationale . The author contends teenage sexting is a significant problem that warrants mandatory community service and counseling, and permissive educational programming. 2)Current law : a) Prohibits the possession or control of any matter or image, the production of which involves the use of a person under the age of 18, knowing that the matter depicts a person under the age of 18 engaging in or simulating sexual conduct, as defined. Violation is a felony, punishable by up to one 1 year in county jail and/or a fine of up to $2,500, or 16 months, 2, or 3 years in state prison. (Penal Code Section 311.11) b) Defines "sexual conduct" as a wide range of sexual activities, as well as exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer. (Penal Code Section 311.4(d)(1)) 3)Sexting is defined by the bill as sending or receiving sexually explicit pictures via a smart phone or other digital device. The author references a 2008 survey of 1,280 teenagers and young adults of both sexes sponsored by The National Campaign to Prevent Teen and Unplanned Pregnancy, which reported that 20% of teens and 33% of young adults had sent nude or semi-nude photographs of themselves electronically. AB 321 Page 3 4)Fiscal Concerns . Given current state fiscal conditions, which could result in multi-billion cuts to K-12 schools, and a major realignment of criminal justice responsibilities that will have county probation departments shouldering significant new responsibilities for youth and adult supervision, is this the appropriate time to encourage new K-12 instructional efforts, which would replace existing educational content, and to require community service and counseling for sexting, rather than letting juvenile courts decide on a case-by-case basis? 5)Judicial Concerns . This committee has generally attempted to protect judicial discretion, which allows for the evaluation of case-specific circumstances. 6)Opposition . The Youth Law Center opposes the mandatory counseling provisions, stating, "First, this criminalizes adolescent behavior by handling the situation through the justice system, and worse, by linking "sexting" to a statute directed at child pornography?. Second, we oppose the imposition of mandatory community service and counseling. Adults convicted of child pornography would not be subjected to mandatory sanctions, and there is no justification for imposing a different disposition standard for juveniles. Further, under Welfare and Institutions Code section 220, juvenile courts have the duty to order individualized care, treatment and guidance for juveniles, and the court might, for example, decide that community service would not be the best fit in a particular case." Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081